| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MARCHIORO -v- TELFER [2002] WADC 187 CORAM : MULLER DCJ HEARD : 19-20 AUGUST 2002 DELIVERED : 23 AUGUST 2002 FILE NO/S : CIV 2025 of 2001 BETWEEN : GARY MARCHIORO Plaintiff
AND
ROSANNE BARBARA TELFER
Defendant
Catchwords: Damages - Assessment - 42 year old computer expert with cervical, lumbar and upper limb injuries following motor vehicle accident - Capacity to work limited to part-time lecturing - Inability to use keyboard other than intermittently - Past and future loss of earning capacity - Award for non-pecuniary loss
Legislation: Motor Vehicle (Third Party Insurance) Act 1943, s 3C
Result: Damages assessed at $99,513.93
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Representation:
Counsel:
Plaintiff : Mr J C R McManus
Defendant : Mr T R D Mason
Solicitors:
Plaintiff : Ilberys
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Southgate v Waterford (1990) 21 NSWLR 427
Case(s) also cited:
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81-043
Hercules Textile Mills Pty Ltd v KHT Textile Engineers Pty Ltd [1955] VLR 310
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
Pennington v Norris (1956) 96 CLR 10
Plenty v Argus [1975] WAR 155
Sibley v Kais (1967) 118 CLR 424
Thomas v O'Shea (1989) A Tort Rep 80-251
Wade & Ors v Allsopp & Anor (1976) 10 ALR 353
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1 MULLER DCJ: In this action the plaintiff claims damages from the defendant for injuries he suffered in a motor vehicle accident on 26 December 1999. The defendant has admitted liability for the accident but has denied the plaintiff suffered the injuries in the accident or that he is entitled to the relief sought.
Circumstances of accident 2 At approximately 8.30 pm on 26 December 1999 the plaintiff was driving his vehicle in an easterly direction on the Causeway when his vehicle developed a mechanical fault and came to a standstill in the traffic lane. Realising the hazardous position he was in the plaintiff turned the vehicle's hazard lights on before looking in the rear vision mirror and seeing a vehicle approaching at high speed from his rear. Anticipating a collision he braced his arms against the steering wheel and the defendant's car collided with the rear of his vehicle at speed. The impact was severe and the plaintiff's car was badly damaged. He got out of the car through the front passenger door but felt no immediate pain or discomfort. He believes he was in a state of shock and arrangements were made to take him home.
The plaintiff's personal circumstances and work history 3 The plaintiff was born on 21 November 1959 and is now aged 42. He is married and has a 7 year old child. He graduated from university with a Bachelor of Arts in history and english and subsequently obtained a diploma in library studies. He also holds a diploma in education and a graduate diploma in computer studies. In more recent years he completed a Master's degree in electronic commerce at Murdoch University. 4 In 1989 he was employed at the Australian Taxation Office as the Manager of Information Services. At the time of his engagement his employer was at the forefront among governmental agencies in the introduction and use of information technology. The plaintiff's work primarily involved the use of his computer skills. He worked at the Australian Taxation Office for a period of 11 years. During this period he was re-classified to the position of Western Australian Project Manager. His income tax returns reveal that he was earning a gross income of approximately $70,100 at the time of the accident. 5 Following the accident the plaintiff continued to work at the Australian Taxation Office but in August 2001 resigned under a redundancy scheme. Following his resignation he began tutoring
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part-time at Murdoch University in December 2001 and is currently both lecturing and tutoring for a total of 12 hours a week at Murdoch.
The plaintiff's condition following the accident 6 On the day after the accident the plaintiff began to suffer from low back pain. He saw his general practitioner, Dr Jon Henderson, on 27 December 1999 and complained of back pain. He subsequently underwent a CT scan and other investigations. On returning to work in early January he still suffered from pain in the area of his back and found that the use of a computer keyboard caused him to suffer pain in his right wrist and the outer aspect of his right arm. Computer tasks also left him feeling numb in his thumb and first finger. He soon found he was only able to use the keyboard and the cursor intermittently. Continued use of the keyboard caused him to suffer pain in his right arm which he described as "sickening" and "nauseous". At the same time he suffered from what he described as a band of stiffness in his lower back and pain in the occipital area and in the right side of his neck. 7 With his symptoms persisted the plaintiff continued to see his general practitioner and was referred to Dr Nicola Cook, a specialist rheumatologist. He was prescribed cortisone to enable him to sit an examination in 2001 and Dr Cook also prescribed medication which the plaintiff ceased using because he found it did not help him. 8 As a consequence of his pain and discomfort the plaintiff arranged with his employer to work more flexible hours and also took sick and annual leave. His work required him to travel to the Eastern States and he found that air travel aggravated the pain in his back and neck. He found he had to change his work practices to avoid persistent use of the computer keyboard. The best he could manage was approximately 10 minutes using the keyboard after which he found he had to have a 15 minute break and do something else to relieve his pain and discomfort. 9 In mid 2001 the Australian Taxation Office offered the plaintiff and other employees a redundancy package. Believing that his physical restrictions were such that he would not be able to work again in the manner he had in the past, and fearing the possibility of relegation to a less attractive position, the plaintiff decided in December 2001 to accept $60,000 by way of redundancy. 10 In January 2002 he was employed as a tutor at Murdoch University. His current position as a lecturer/tutor requires 6 hours' class work a week.
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He is also required to use a computer keyboard to prepare his work but only manages these tasks with difficulty. While his current employer has offered to increase his lecturing hours to 12 hours weekly the plaintiff believes that his physical restrictions, and his inability to work other than intermittently on the computer keyboard, precludes him from increasing his current work load. 11 Apart from his university work the plaintiff has also been involved in a web design partnership with two others for several years. When the partnership was formed the intention was that the plaintiff would contribute his computer skills to the commercial venture. Although he was aware of his physical restrictions he believed he would be able to work from his own home and in his own time and make a meaningful contribution. He has now come to the conclusion that his physical restrictions are such that he cannot contribute what he initially believed he would be able to and the venture is being reviewed. 12 Despite his pain and discomfort the plaintiff has continued to maintain a high level of physical activity. Prior to the accident he swam approximately 1.8 km daily and cycled approximately 250 km a week. He also played tennis and ran on the beach. Following the accident he modified his level of physical activity and continues to swim approximately 800 metres 4-5 times a week and ride his bicycle over reduced distances. Whilst swimming he suffers pain in his arm during the down stroke and has had to change his posture when riding his bicycle. 13 Before his accident the plaintiff hoped that with his qualifications and experience he would be able to get a highly paid position in the computer industry either in Sydney or Asia.
The medical evidence 14 The reports of the several medical practitioners who treated the plaintiff were admitted by consent. 15 Dr Henderson, who saw the plaintiff immediately after the accident, said in a report dated 25 October 2000 that he suffered from neck, shoulder, right forearm and low back pain with stiffness especially on rising in the morning and with sitting for prolonged periods. A clinical examination revealed tenderness over the cervical facet joints, right subacromial bursa and forearm extensors. X-ray and CT scans revealed disc degeneration at C5-6 and L1-2.
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16 Dr N Cook, the specialist rheumatologist to whom the plaintiff was referred, said in a report dated 21 May 2001 that the plaintiff had a full range of essentially pain free movement of the neck and shoulders but tenderness in the region of the right posterior interosseous nerve and weakness of movement in the hand. In the same report Dr Cook diagnosed neurogenic right upper limb pain due to peripheral nerve trauma suffered in the motor vehicle accident. In her view this type of neurogenic pain is very difficult to treat unless the area of the injury can be accurately identified when surgery may be appropriate. In a later report dated 28 November 2001 Dr Cook expressed uncertainty as to her earlier diagnosis. While she believed the plaintiff's pain was neuropathic she conceded that the symptoms in his forearm might be of a musculature nature similar to writer's cramp.
17 Dr Peter Silbert, a neurologist, saw the plaintiff on 10 April 2002 and, like Dr Cook, found he had a full range of movement of his cervical and lumbar spine but was tender over the right posterior interosseous nerve and to a lesser extent over the left posterior interosseous nerve. Other neurological testing proved normal. In his view the plaintiff had suffered cervical and lumbar discomfort as a consequence of the motor vehicle accident. In a report dated 10 April 2002 he expressed the view that this cervical and lumbar discomfort was a combination of facetal and muscular. In addition the pain in the plaintiff's right forearm was, in Dr Silbert's opinion, consistent with a posterior interosseous nerve type syndrome. In par 5 of his report he says: "Mr Marchioro has managed his cervical and lumbar discomfort well, and this has not restricted his work activity, although it has caused him discomfort. The main limitation to his work activity has been his right forearm pain. This does limit his future employment options as he is now designing web pages which involves significant computer work. I feel he will have significant discomfort over the next 1-2 years, but would expect a gradual improvement in his symptoms with the passage of time." In the same report Dr Silbert concluded that, in his view, the plaintiff had a significant residual disability and that a release of the right posterior interosseous nerve in the forearm may be required. 18 The only medical witness called to give evidence was Dr Phillip Hardcastle, a specialist in orthopaedic and spinal disorders. His examination of x-rays and a CT scan and MRI investigation of the
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plaintiff's cervical and lumbar spine revealed significant degeneration in the cervical spine at the C5/6 level and other changes at the C4/5 level. The lumbar spine showed advanced degeneration at L1/2 and to a lesser extent at L5-S1. There was, however, no evidence of nerve root compression. In Dr Hardcastle's opinion the degenerative changes were long standing and previously asymptomatic but the soft tissue injury caused by the accident was likely to have rendered them symptomatic. The pain in the plaintiff's right arm was, in his view, referred pain emanating from the now symptomatic damage at the C5/6 level and possibly the C4/5 level as well. The aggravation of the plaintiff's degenerative condition by the soft tissue injury following the accident was also considered to be the cause of the plaintiff's headaches and the ache and stiffness in the plaintiff's lumbar spine. While he conceded it was very difficult to predict how long the pain in the plaintiff's arm might persist Dr Hardcastle expressed the view that substantial improvement could be expected within a period of 5 years from the date of the accident. If the pain persisted after that time he believed surgery might be required. He also believed that the plaintiff's current limitations in using his right arm precluded him from using that limb on a repetitive basis. 19 Dr Hardcastle's findings were to a large extent confirmed by the findings of Mr Peter Bath, an orthopaedic surgeon whose reports were tendered by the defendant with the consent of the plaintiff. While Dr Bath agreed with Dr Hardcastle's conclusions as to the symptomatology of pain in the right arm he did express some reservations about the plaintiff's degree of disability and had difficulty reconciling the plaintiff's claim that he was unable to work other than intermittently at a computer keyboard with his ability to swim and ride long distances. When asked to comment on these observations Dr Hardcastle seemed to take a contrary view. He believed the pain in the plaintiff's arm when operating a keyboard was posturally related and this, in his view, explained how the plaintiff had been able to adapt and continue his exercise regime.
Finding as to plaintiff's incapacity 20 I was impressed by the evidence of the plaintiff. In my view he gave a credible account of his physical shortcomings and did not attempt to exaggerate his condition. He was prepared to acknowledge the apparent inconsistency in his being able to continue with a vigorous exercise regime but unable to work on a computer keyboard other than intermittently with rests in between. He impressed me as a person who was prepared to do his utmost to overcome his handicap. I have no
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hesitation in accepting his evidence that he can no longer operate a computer keyboard as he did in the past. His inability to do this work is consistent with Dr Hardcastle's findings of soft tissue injury following the accident aggravating and rendering symptomatic the pre-existing degenerative condition in the cervical spine.
Past economic loss 21 Having found that the plaintiff's injury has rendered him substantially incapable of working on a computer keyboard since the date of the accident I must now assess the plaintiff's past loss of earning capacity to the date of trial. In considering this issue the first question that arises is whether the plaintiff was justified in terminating his employment with the Australian Taxation Office. In his evidence he explained that while there was no threat of dismissal from his employment because of his injuries he believed at the time that his physical handicap precluded him from performing his tasks as he had before the accident and might lead to his relegation to a position he simply found unacceptable. I accept his evidence on this issue. The next question that arises is whether the plaintiff's injuries caused the termination of his employment with the Australian Taxation Office. I am satisfied that they did. In Medlin v The State Government Insurance Commission (1995) 182 CLR 1 a 56 year old university professor had been injured in a motor vehicle accident and resumed his university duties before taking retirement 4½ years before he would have been obliged to retire because his symptoms convinced him he was no longer able to discharge his university functions at a satisfactory level. In these circumstances the High Could ruled that his injuries did contribute causally to the premature termination of his employment because the effect of those injuries was to decrease his ability to discharge the duties of his position. The same can be said in this case. The plaintiff's inability to work on the computer keyboard as he had in the past led him to believe that his ability to carry on his employment had been substantially impaired. This not surprisingly caused him to question his own capacity to continue working for the Australian Taxation Office and led him to believe that his employer would relegate him to a lesser position. Contrary to what was submitted by counsel for the defendant I see no distinction between this situation and that in Medlin (supra). Here, as in Medlin, the premature termination by the plaintiff of his employment was causally related to his injuries and was the product of the diminution of his earning capacity. That being the case I believe the plaintiff is entitled to an award of damages to compensate him for his past loss of earning capacity.
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22 The plaintiff's pre-accident earnings were $935.20 net per week. His current earnings as a tutor at Murdoch University are $143.48 net per week. For reasons I shall explain later I am satisfied he could have undertaken three units each semester since he began at Murdoch and, had he done so, would have been earning $437.07 net per week since December 2001. He has suffered a loss of $542.95 net per week representing the difference between his earnings at the Australian Taxation Office and what I believe he could have earned as a part-time tutor/lecturer.
23 His past loss of earnings over the 36 week period between the termination of his employment with his former employer and the date of trial is as follows: 36 (weeks) x $542.95 (difference in net wages per week) = $19,546.20.
Loss of future earning capacity 24 While the plaintiff began at Murdoch University as a tutor he is now engaged in both lecturing and tutorial activities. His commitment is presently limited to 6 hours lecturing and tutoring duties a week but he has been asked to increase the number of teaching hours. At present he does not feel confident he is able to do this. He emphasised that he can only manage his present commitment with difficulty because of his inability to work with a keyboard for long periods. I believe the plaintiff has underestimated his capacity to do part-time work. His ability to continue with his physical regime, and the continuing contribution he makes to the business partnership he is a member of, lead me to conclude that he could from the outset have at least tripled the number of hours he is currently working and in that way increased his income to approximately $437.07 net a week. I realise this may have required a considerable effort on the plaintiff's part but, given the determination and resolve he has shown in the past, I do not believe he would have found this impossible to achieve. I believe the $60,000 redundancy payment he received diminished the impact of his loss of employment with the Australian Taxation Officer and reduced the need for him to earn a liveable income. While his inability to operate a keyboard for sustained periods is a major problem I see no reason why he could not have modified his work practices from the outset to accommodate the additional hours that were and still are available to him. 25 Given my finding that it was reasonable for the plaintiff to have prematurely terminated his employment with the Australian Taxation
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Office the only remaining question is whether he has fully exercised his retained capacity since December 2002. In dealing with the issue of the plaintiff's past loss of earning capacity I have already made the finding that he could reasonably be expected to have managed three units per semester. The next question is whether the plaintiff's diminished capacity will continue in the future and, if it does, for how long it will continue. I am satisfied on the plaintiff's own evidence and that of Dr Hardcastle that his diminished capacity will continue to affect his performance of work. Dr Hardcastle expressed the view that the plaintiff's incapacity could continue for as long as 5 years from the date of the accident. If he has not recovered after that length of time he might have to undergo surgery. If that were the case there is an 85 per cent chance of his recovering fully. Mr Mason for the defendant has urged me to find that, even if I reach the conclusion that the plaintiff was justified in terminating his employment with the Australian Taxation Office and, because of his injury, is currently precluded from working on a full time basis, the prospects are that he will recover gradually during the next 3 years to the point where he will be able to lecture full time. I do not believe that submission is supported by the evidence. In my view the more probable inference is that the plaintiff will only manage to lecture and tutor on a part-time basis for the next 3 years. While his capacity may improve to some extent I am unable to find that he will be able to take up a full time position in the next 3 years. It may well be his condition will improve to the point where he could increase the number of hours he works. That, in my view, is a real possibility and any award for future loss of earning capacity should be discounted to reflect this contingency. Given my finding that the plaintiff was justified in terminating his employment with the Australian Taxation Office, and that his injuries will probably preclude him from teaching more than three units per semester, I believe the correct measure of damages for future loss of earning capacity is the difference between his previous earnings at the Australian Taxation Office and what he would earn lecturing and tutoring in three units for a period of the next three years. The actual calculations reflecting this measure of damages are set out in the plaintiff's Amended Schedule of Past and Future Economic Loss based upon the plaintiff's capacity to teach three units per semester. The relevant calculations extracted from this document are as follows:
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In the light of my finding that the plaintiff ought to have recovered within 5 years of the date of the accident on 26 December 1999 I believe it is appropriate to use the 3 year multiplier as set out in the plaintiff's amended schedule of past and future economic loss. $542.95 x 143.6 = $77,967.73. I have already mentioned I must take into account the possibility that his condition will improve in the next 3 years and that such improvement will enable him to increase the number of hours he is able to work. I believe the damages awarded should be discounted by 10 per cent to reflect this contingency. Because his injuries are likely to resolve in the next 2-3 years I do not believe any further discounts for contingencies ought to be made. $77,967.73 – 10% = $67,967.73.
Pain and suffering and loss of amenities 26 Following his injuries in the accident the plaintiff suffered from stiffness in the lower back, pain in the occipital region and right side of his neck and the extension of pain into his right arm. He underwent various investigations including x-rays, CT scans and an MRI investigation. He also underwent acupuncture on three to four occasions and deep tissue massage for a 12 month period. During this time he took cortisone on one occasion to enable him to sit an examination and was prescribed Amitriptylline which proved unsuccessful. 27 The pain and discomfort has now persisted for over 2½ years. To his credit the plaintiff has maintained a reduced but still vigorous exercise regime. He is not undergoing any further treatment. 28 The plaintiff is no longer able to play tennis or go beach running. He has also lost the enjoyment of unlimited use of a computer keyboard. His condition might persist for another 2½-3 years and if it goes beyond that, he might have to undergo surgery. 29 The plaintiff's injuries arose from a motor vehicle accident after 1 July 1993. The provisions of s 3C of the Motor Vehicle (Third Party
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Insurance) Act 1943 govern the amount of damages to be awarded to the plaintiff for non-pecuniary loss. 30 Non-pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Subsection (2) of s 3C of the Act limits the amount of damages to be awarded for non-pecuniary loss to a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded. 31 The maximum amount of damages that may be awarded under the Act for non-pecuniary loss is currently set at a figure of $240,000. 32 Subsection (3) of s 3C provides that the maximum amount of damages that may be awarded for non-pecuniary loss may be awarded only in a most extreme case. 33 In interpreting these provisions I intend following the approach to be found in Southgate v Waterford (1990) 21 NSWLR 427. 34 I have already identified the evidence relating to the heads of damage referred to in the definition of non-pecuniary loss. The next step I am required to take is to postulate what might be a most extreme case in which the maximum amount of damages, currently standing at $240,000, may be awarded for non-pecuniary loss, and then apportion damages by comparing the severity of the plaintiff's non-pecuniary loss with that likely to be suffered in a most extreme case. When the plaintiff's injuries and associated symptoms are compared with what may be regarded as a most extreme case, as, for example, quadriplegia, it seems clear that the plaintiff's injuries and symptoms, their progression and treatment, the possible room for their improvement and the effect they have had on his enjoyment of life place his case at no more than 10 per cent of a most extreme case. 35 I award the plaintiff $12,000 for non-pecuniary loss.
Summary of award Past loss of earning capacity $19,546.20 Future loss of earning capacity $67,967.73 Non-pecuniary loss $12,000.00 $99,513.93
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